Sham S/O Pukhraj Asopa vs Smt. Savita Bhagwantrao Patil
2018 Latest Caselaw 488 Bom

                                     1                                    apeal447.06




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.447 OF 2006


 Shyam s/o Pukhraj Asopa,
 Aged about 35 years, 
 Occupation - Business, 
 R/o Bachcharaj Plots, Amravati.                          ....       APPELLANT


                     VERSUS


 Smt. Savita Bhagwantrao Patil,
 Aged about 32 years, 
 R/o Saraswati Nagar, Amravati.                           ....       RESPONDENT

 ______________________________________________________________

        Shri D.A. Sonone, Advocate appointed for the appellant,
                       None for the respondent.
  ______________________________________________________________

                            CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 06-10-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 16-01-2018

 JUDGMENT : 

Challenge is to the judgment dated 04-1-2006 passed by

the learned Chief Judicial Magistrate, Amravati in Summary Criminal

Case 217/2005, acquitting the respondent/accused of offence

punishable under Section 138 of the Negotiable Instruments Act, 1881

("Act" for short).

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2. The complaint (Exhibit 1) states that accused Savita Patil

was in need of money and requested the complainant for hand loan of

Rs.97,000/- and assured that the loan would be repaid as and when

required by the complainant.

The complainant extended hand loan of Rs.97,000/- to the

accused who issued cheque drawn on Canara Bank, Amravati dated

13-11-2004 towards repayment. The cheque was dishonoured due to

insufficient funds in the account of the accused, statutory notice dated

15-12-2004 was issued which was returned back with the endorsement

"not claimed". The complainant also issued notice under certificate of

posting which is deemed to be served. In view of the non-compliance,

the complainant was constrained to prefer the complaint.

3. The complainant deposed in consonance with the

complaint.

In cross-examination, the complainant states that he is

acquainted with the accused as she was working as Manager of the

Girls Hostel and the complainant was the Mess Contractor. The

suggestion that the complainant and the accused jointly undertook the

contract of catering of the Girls Hostel, is denied. The complainant

states that in all four cheques were handed over to the accused. In the

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three remaining cheques other than the disputed cheque, one cheque

was for Rs.95,000/- and the other was for Rs.1,25,000/-. The

complainant is not in a position to state when he extended the hand

loan to the accused. In so far as the three cheques other than the

disputed cheque, the deposition is that the accused gave the

complainant cheques since the complainant was to receive some

amount from the accused. The complainant admits that those cheques

were given as security. The complainant admits that he is not in a

position to state when he gave the amount covered by the three

cheques (other than the disputed cheque) to the accused. He is not in

a position to even disclose the year in which the amount was given to

the accused. He admits that he is facing prosecution under Section 138

of the Act instituted by the accused as regards cheque for Rs.50,000/-.

The complainant does not recollect if the prosecution was instituted in

August 2002. He denies the suggestion that another notice dated

13-9-2002 was issued by the accused demanding Rs.60,000/- paid by

her to the complainant. The witness was confronted with the reply

notice issued on his behalf to the accused (Exhibit 26). The

complainant admits that his wife Rachana lodged the police report

against him, the accused and others. He, however, denies the

suggestion that since the said report, relations between him and the

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accused became strained. He is not in a position to state if the words

and figures in cheque (Exhibit 17) are in different ink than the name

and signature on the cheque. He denies the suggestion that there is

overwriting in the date 13-11-2004. He admits that there is no counter

signature on the date.

4. In the statement under Section 313 of the Criminal

Procedure Code, the accused stated that she did not receive

Rs.97,000/- from the complainant as loan. She states that she is falsely

implicated since she instituted proceedings under Section 138 of the

Act against the complainant and since the wife of the complainant

lodged report.

5. The learned Magistrate was alive to the statutory

presumptions under the Act. The learned Magistrate has recorded a

finding that the statutory presumptions are duly rebutted. The learned

Magistrate has noted that the complainant suppressed several facts

from the Court. It is noted that from reply notice (Exhibit 26) issued

by the complainant it is apparent that according to the accused she

extended hand loan of Rs.50,000/- to the complainant in February

2002, the complainant issued cheque dated 27-6-2002 which was

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dishonoured and accused Savita instituted proceedings under Section

138 of the Act. Accused Savita also advanced Rs.40,000/- in January

2001, the complainant issued cheque 175858 towards repayment

which was dishonoured and proceedings under Section 138 of the Act

were initiated by accused Savita. The learned Magistrate noted from

perusal of Exhibit 26, that the complainant admitted receiving

Rs.50,000/- from accused Savita. However, the complainant stated in

Exhibit 26 that the cheque for Rs.40,000/- was mistakenly issued. The

learned Magistrate has also considered notice dated 24-9-2009 issued

by the complainant to the accused (Exhibit 27) alleging that the

complainant advanced Rs.4,25,000/- to the accused from time to time.

The learned Magistrate has held the contents of the said notice not

believable inter alia on the ground that Exhibit 26 disclosed that

according to the complainant, he refunded the amount of Rs.50,000/-

to accused Savita on 20-3-2002 and it was, therefore, inconceivable

that within six months the complainant could have extended loan of

Rs.4,25,000/- to accused Savita. It is in the backdrop of the said facts

which came on record that the learned Magistrate appreciated the

failure of the complainant to disclose the date or month in which he

extended the loan to accused Savita.

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6. The learned Magistrate has noted that the contents of the

cheque were in different ink. The defence of the accused that the

cheques were issued to the accused for making payment to employees

of the Girls Hostel which was jointly managed by the complainant and

the accused is found probable.

7. It is true that the accused has not stepped into the witness

box. But then, it is trite law that the accused need not adduce direct

evidence to create doubt about the veracity of the complainant's case.

The accused may rely on material produced by the complainant or the

material which is extracted in the cross-examination of the complainant

or his witnesses to probablise the defence. The burden on the accused

to show that the debt or liability did not exist or that the existence of

the debt or liability is not probable, is required to be discharged on

preponderance of probabilities.

8. The learned Magistrate has taken a view which is a

possible view. In the absence of any serious error or miscarriage of

justice, this Court would be sole to interfere in the judgment of

acquittal. No such infirmity is brought to my notice.

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9. The appeal is sans merit and is rejected. The fees of the

appointed Counsel are fixed at Rs.3,000/-.

JUDGE adgokar